Osborne Metal Industries v Bullock (No.3) [2011] NSWSC 640

Supreme Court New South Wales

Medium Neutral Citation: Osborne Metal Industries v Bullock (No.3) [2011] NSWSC 640 Hearing dates: 20/06/2011, 21/06/2011, 22/06/2011, 23/06/2011 and 24/06/2011 Decision date: 23 June 2011 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: Tender rejected Catchwords: EVIDENCE - admissibility - evidence going to credibility - rejection of evidence - s 102. Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Osborne Metal Industries (NSW) Pty Ltd ACN 003 284 928 (First Plaintiff) Brooker Holdings Pty Limited ACN 003 912 258 (Second Plaintiff) Bullock MFG Pty Ltd ACN 001 199 677 (First Defendant) Roy James Jackson (Second Defendant) Rodney John Jackson (Third Defendant) Representation: Counsel: D B Studdy SC / J H Stephenson (Plaintiffs) F C Corsaro SC / J J Young (Defendants) Solicitor: Watson Mangioni Lawyers (Plaintiffs) Bundock / Palmer Lawyers (Defendants) File Number(s): 2009/298671

Judgment - (EX TEMPORE) ON ADMISSIBILITY OF EVIDENCE 1HIS HONOUR: The affidavit of Mr Roy Jackson (Mr Jackson), sworn 28 October 2010, was read. Objection was taken to paragraph 49 and I rejected it. 2Paragraph 49 referred to a letter written by Mr Jackson, in his capacity as managing director of Jackson International Pty Ltd, to ASIC. The plaintiffs understood that the upholding of their objection to paragraph 49 meant that the letter in question was not in evidence, notwithstanding that the exhibit of which it physically formed part was tendered and admitted (exhibit PX6). 3The defendants assumed that notwithstanding the rejection of paragraph 49, the process that I have just described meant that the letter was in evidence. 4The suggested relevance of the letter is that in one paragraph of it Mr Jackson referred, among other things, to "Negotiations...for the sale of Osborne Metal Industries (NSW) Pty Ltd...to Brooker Holdings Pty Ltd..."; and that, in the following paragraph, Mr Jackson asserted that the sale "on July 1st 2004" excluded "any of the debts incurred during the financial year ended June 30th 2004". The company whose shares were being sold was, of course, the first plaintiff and the company to whom those shares were sold was, of course, the second plaintiff. The vendor was the first defendant. 5Mr Corsaro of Senior Counsel submits that the letter is relevant because it goes to the assessment of whether or not there was, at the time of the sale, an agreement that Bullock was to retain the benefit of the receivables (or net receivables) of Osborne. Mr Jackson has asserted, in his affidavit and in his cross-examination, that there was such an agreement. The plaintiffs deny that there was. 6The objection was taken on the basis of s 102 of the Evidence Act 1995 (NSW). That section provides that "Credibility evidence about a witness is not admissible". Credibility evidence is defined in s 101A of the Evidence Act as follows: Credibility evidence Credibility evidence , in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that: (a) is relevant only because it affects the assessment of the credibility of the witness or person; or (b) is relevant: (i) because it affects the assessment of the credibility of the witness or person; and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6. 7The term "credibility" (in respect of witnesses) is defined in the Dictionary to the Evidence Act to mean "The credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence". 8It was not suggested that any of the specific exceptions to the credibility rule, contained in s 103 and following of the Evidence Act , was relevant. 9It seems to be clear from the definition that I have just quoted that evidence will affect the credibility of the witness whether it tends to support, or whether it tends to detract from, the credibility of the witness. That is to say, credibility evidence is evidence which bears on the reliability of a witness and on the reliability of particular parts of the testimony of the witness. For those reasons, matters such as prior consistent statements, which are statements after the event (whether or not they are in terms self serving - that is to say, written for the purpose of demonstrating credibility), fall within the ambit of the term credibility evidence. It is to be noted that the dictionary to the Evidence Act defines the expression "prior consistent statement" to mean "a previous representation that is consistent with evidence given by the witness". That is to say, it refers to a representation that is made before the witness gives evidence, and thus includes a representation made after the events of which the witness gives evidence and which relates to the subject matter of those events. 10The submission that the evidence is tendered to prove that there was an agreement of the kind alleged by Mr Jackson, and that it is capable of doing so because it is consistent with the evidence given by him of that agreement, seems to me to show beyond doubt that the evidence is indeed credibility evidence, and is thus prohibited by s 102 of the Evidence Act . 11For those reasons I reject the document contained at pages 2-296 and 2-297 of Exhibit PX6. The documents should be removed from the exhibit.